Summary: There was fault by the Council which failed to carry out a review and failed to arrange the provision on Ms Y’s Education, Health and Care Plan. This caused avoidable time and trouble and a loss of provision. The Council will apologise, make Ms X a symbolic payment and arrange and pay for the six hours weekly tuition Ms Y missed out on in the school year 2022-2023.

The complaint

1. Ms X complains for her daughter Ms Y about the Council’s failure to arrange the tuition in Ms Y’s Education, Health and Care plan (EHC plan) from September 2022. She said this caused a loss of provision for Ms Y.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

5. I considered the complaint to us, the Council’s responses to the complaint and Ms Y’s EHC plan. I discussed the complaint with Ms X
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the educational provision the Council has to arrange.

8. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014).
9. The SEND Code of Practice says:
• provision should generally end at the end of the school year to allow the young person to complete their programme of study. Where the young person turns 25 before their course has ended, the plan can be maintained until the end of the school year.
• Councils must review an EHC plan each year.

What happened

10. Ms Y is a young adult who has an EHC plan dated November 2021. Section F of the plan has the following special educational provision:

“Ms Y will receive a package of one-to-one tuition for Maths and English function skills which will be delivered by a trained tutor in a community setting and will receive support from her care staff to travel to the agreed location. The care staff will be on hand to reassure and support Ms Y as required throughout the session before supporting her to travel home.”

11. The Council commissioned Ms Y’s tuition with an agency and this took place until. July 2022. The reasons for this stopping are unclear. Ms X told me she began contacting the SEND team in October 2022 to ask for tuition to re-start and eventually made a formal complaint.
12. The Council’s first response to the complaint (January 2023) said Ms Y’s EHC plan was supposed to be reviewed in September 2022, but this did not happen and the Council was sorry for this. The Council also said:
• It was sorry for not providing tuition since September 2022. The lack of a review was due to staff sickness and vacancies.
• It should have carried out an annual review to see if the outcomes and provision remained appropriate and this would be completed as soon as possible.
• It will take into account the time Ms Y was not receiving all the provision in Section F when planning its educational offer ‘moving forward’
13. The Council’s second stage response (March 2023) said more or less the same as the first response. It noted the new case officer was now on long-term sick leave and Ms Y’s views had been obtained, but the review had not been completed.
14. Ms X was unhappy with the Council’s final response and complained to us.
15. Ms X told me there had been a review meeting on-line and she had recently had a letter from the Council saying it intended to cease to maintain Ms Y’s EHC plan. (Ms Y was 25 in April this year.)

Was there fault and if so did this cause injustice?

16. The Council was at fault because:
• Ms Y’s EHC plan of November 2021 was not reviewed in 2022. This was not in line with the SEND Code of Practice and was fault. I note the Council wanted to review the suitability of provision and the outcomes, but it did not carry out a review.
• The lack of annual review in 2022 or amended plan means the EHC plan of November 2021 still applies. So the Council should have arranged (‘secured’) the tuition on that plan in line with its duty in Section 42 of the Children and Families Act 2014. As the Council commissioned tuition with an external provider, it would have been aware tuition stopped in July 2022.
• The Council’s complaint responses were inadequate. They identified fault and injustice, but failed to provide an appropriate remedy. The first response said the Council would consider missed provision, yet there has not been an attempt to secure this provision or offer a payment instead.
17. Ms Y should have received six hours a week of individual tuition for the school year September 2022 to July 2023. She therefore missed a year of education provision to which she had a legal entitlement. The failure to secure provision and to review the EHC plan also led Ms X to complain, causing her avoidable time and trouble.

Back to top

Agreed action

18. The aim of our recommendations is to put the person back where they should be if there hadn’t been fault. Sometimes we make a recommendation for a payment, but in this case, Ms X would be the person who would have to manage the payment on Ms Y’s behalf and she told me she is not in a position to identify and arrange tuition. So it is not appropriate for me to recommend a payment to reflect lost provision.
19. Within one month of my final decision, the Council will:
• Apologise to Ms X and Ms Y
• Make Ms X a payment of £100 to reflect her avoidable time and trouble complaining.
• Arrange six hours a week of individual tuition for school term time for the academic year September 2023 to July 2024. This puts Ms Y back into the position she would have been had there been no fault.
20. I have not recommended a review of Ms Y’s EHC plan because she has turned 25 and so the plan is ceasing. A review would serve no purpose.
21. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

22. There was fault by the Council which failed to carry out a review and failed to arrange the provision on Ms Y’s Education, Health and Care Plan. This caused avoidable time and trouble and a loss of provision. The Council will apologise, make Ms X a symbolic payment and arrange and pay for the six hours weekly tuition Ms Y missed out on in the school year 2022-2023.
23. I completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman